Citation Nr: 0107091
Decision Date: 03/09/01 Archive Date: 03/16/01
DOCKET NO. 99-14 353 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for a left shoulder
disability.
2. Entitlement to service connection for a back condition,
claimed as a muscle strain.
3. What evaluation is warranted for hearing loss from
October 31, 1997?
4. What evaluation is warranted for hemorrhoids from October
31, 1997?
5. What evaluation is warranted for residuals of a left ankle
inversion from October 31, 1997?
6. What evaluation is warranted for bilateral mandibular
fracture residuals from October 31, 1997?
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1967 to
January 1995.
These matters came to the Board of Veterans' Appeals (Board)
from a January 1999 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
FINDINGS OF FACT
1. A chronic left shoulder disorder was demonstrated in-
service.
2. A chronic back disorder was not demonstrated in-service,
and no competent evidence links a current left shoulder
disorder to service.
3. The veteran has level I hearing bilaterally.
4. The puretone threshold at each specified frequency of
1000, 2000, 3000, and 4000 Hertz, is not 55 decibels or more,
and is not both 30 decibels or less at 1000 Hertz, and 70
decibels or more at 2000 Hertz.
5. Since October 31, 1997, residuals of a left ankle
inversion have not been manifested by a moderate limitation
of ankle motion.
6. Since October 31, 1997, bilateral mandibular fracture
residuals have not been manifested by malunion of the
mandible with moderate displacement.
CONCLUSIONS OF LAW
1. A chronic left shoulder disorder was incurred during the
veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131
(West 1991).
2. A chronic back disorder was not incurred or aggravated
during the veteran's active duty service. 38 U.S.C.A.
§§ 1110, 1131.
3. The criteria for a compensable rating for bilateral
hearing loss from October 31, 1997, have not been met. 38
U.S.C.A. § 1155 (West 1991); Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38
C.F.R. § 4.7 (2000); 38 C.F.R. §§ 4.85, 4.86, 4.87,
Diagnostic Code 6100 (1998); 38 C.F.R. § 4.85, 4.86,
Diagnostic Code 6100 (2000).
4. The criteria for a compensable evaluation for left ankle
inversion residuals since October 31, 1997, have not been
met. 38 U.S.C.A. § 1155; Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R.
§§ 4.7, 4.20, 4.31, 4.40, 4.45, Diagnostic Codes 5271, 5272,
5273 (2000).
5. The criteria for a compensable evaluation for bilateral
mandibular fracture residuals since October 31, 1997, have
not been met. 38 U.S.C.A. § 1155; Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38
C.F.R. §§ 4.7, 4.20, 4.150, Diagnostic Codes 9900, 9903,
9905, 9999-9904 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§§ 3.303, 3.304 (2000). In addition, certain chronic
conditions, including arthritis, may be presumed to have been
incurred during service if the disorder becomes manifest to a
compensable degree within one year of separation from active
duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (2000). However, "[a] determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service." Watson v. Brown, 4 Vet. App. 309, 314 (1993).
In this regard, the service medical records show that the
veteran suffered an left acromioclavicular separation during
a fight in May 1968. The appellant was hospitalized at that
time, in part, for residuals of this injury. At his November
1994 retirement examination this injury history was noted,
however, clinical evaluation revealed normal upper
extremities. While the history of an in-service injury was
also noted during the veteran's July 1998 VA examination,
physical examination at that time was notable for point
tenderness, and increased pain with forward flexion. These
residuals have not been associated with any post service
injury. As such, the evidence is at least in equipoise in
showing that the appellant currently has residuals of a left
acromioclavicular separation. Hence, service connection for
residuals of a left acromioclavicular separation is granted.
With respect to the claim of entitlement to service
connection for a back disorder the service medical records
show that on one occasion in March 1981, the appellant
reported complaints of back pain after doing sit ups.
Physical examination resulted in a diagnosis of a muscle
strain. Significantly, however, the service medical records
are devoid of any additional complaints or findings, and at
his November 1994 retirement examination the veteran's spine
was clinically evaluated normal. Further, while physical
examination by VA in July 1998 revealed mild point lower back
tenderness, this tenderness was not associated with the March
1981 episode of back pain or otherwise linked to service. As
such, the Board finds that the preponderance of the competent
evidence is against concluding that the veteran currently
suffers from a back disorder due to his active duty service.
Hence, the benefit sought on appeal is denied.
In denying service connection for a back disorder the Board
considered the doctrine of reasonable doubt, however, as the
preponderance of the evidence is against the appellant's
claim, the doctrine is not for application. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Original Evaluations for Hearing Loss, a Left Ankle
Disability, and Fractured Mandible Residuals
The Board is satisfied that all relevant facts have been
properly developed and that VA has fulfilled its duty to
assist the veteran as mandated by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000).
Disability evaluations are based upon the average impairment
of earning capacity resulting from a disability. 38 U.S.C.A.
§ 1155. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7. Consideration is
to be given to all other potentially applicable regulations,
whether or not they have been raised by the veteran, as
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In this case, the veteran is in disagreement with the initial
rating assigned for the service-connected disabilities at
issue. Thus the Board must consider the rating, and, if
indicated, the propriety of a staged rating, from the initial
effective date forward. See Fenderson v. West, 12 Vet.
App. 119 (1999). With regard to the disabilities at issue,
however, the Board finds that the preponderance of the
evidence is against staged ratings.
Hearing Loss
The service medical records do not reflect complaints of
hearing loss. A history of hearing loss was not noted at the
time of the November 1994 retirement examination. At that
time, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
6000
RIGHT
10
20
15
15
5
15
LEFT
10
15
20
20
10
30
On an authorized VA audiological evaluation in August 1998,
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
Average
RIGHT
15
25
20
20
10
18.75
LEFT
15
25
30
20
15
22.5
Speech audiometry revealed speech recognition ability of 90
percent bilaterally. It was noted that the veteran was
exposed to loud artillery noise during his 28 years in
service. He complained of decreased hearing and high pitched
tinnitus in the left ear. The diagnosis was mild high
frequency sensorineural hearing loss. The examiner
recommended that the veteran needed to protect his ears from
loud noise.
Service connection is currently in effect for bilateral
hearing loss, and is rated as noncompensable under the
provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Since
the initiation of the appeal, amendments were made to the
rating criteria used to evaluate the service-connected
disability at issue. 64 Fed. Reg. 25206-209 (1999). The new
rating criteria took effect on June 10, 1999.
The United States Court of Appeals for Veterans Claims
(Court) has stated that where the law or regulation changes
after a claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply unless
Congress provides otherwise. Karnas v. Derwinski, 1 Vet.
App. 308 (1991). The Court has further stated that when the
Board addresses in its decision a question that was not
addressed by the RO, the Board must consider the question of
adequate notice of the Board's action and an opportunity to
submit additional evidence and argument. If not, it must be
considered whether the veteran has been prejudiced thereby.
Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
In this regard, the May 1999 statement of the case addressed
only the old criteria. In this case, however, the rating
changes are not pertinent to the veteran's case since the
tables used to rate the disability have essentially remained
unchanged in substance, and the appellant's clinical picture
is totally dissimilar to that discussed in the new
provisions. Hence, the Board finds that it may reach the
merits of this claim now without prejudice to the appellant's
right to due process.
Under the old and new version of 38 C.F.R. § 4.85, Diagnostic
Code 6100, evaluations for bilateral defective hearing range
from noncompensable to 100 percent based on organic
impairment of hearing acuity as measured by the results of
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometric tests in
the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. To
evaluate the degree of disability for bilateral service-
connected defective hearing, the rating schedule establishes
11 auditory acuity levels, designated from level I for
essential normal acuity through level XI for profound
deafness.
In this case, the VA examination findings of August 1998
translate into literal designations of level I hearing
bilaterally, and they do not support the assignment of a
compensable rating under either the old or the new criteria.
The Board also considered the veteran's contentions contained
in the record that his hearing loss is more severe than
demonstrated. Although the veteran's contention is credible,
it may not serve to establish entitlement to a higher rating
for hearing loss because "disability ratings for hearing
impairment are derived by a mechanical application of the
rating schedule to the numeric designations assigned after
audiometric evaluations are rendered." Lendenmann v.
Principi, 3 Vet. App. 345 (1992). Here, such mechanical
application establishes that a noncompensable rating is
warranted.
In this case, it has not been established that the veteran
uses hearing aids. The version of 38 C.F.R. § 4.86 in effect
prior to June 10, 1999, provided that the evaluations derived
from the schedule were intended to make proper allowance for
improvement by hearing aids, and that examination to
determine this improvement was therefore unnecessary.
The revised version of 38 C.F.R. § 4.86 addresses the matter
of exceptional patterns of hearing impairment. When the
puretone threshold at each of the four specified frequencies
(1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more,
the rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86(a). When the
puretone threshold is 30 decibels or less at 1000 Hertz, and
70 decibels or more at 2000 Hertz, the rating specialist will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. That numeral will then be
elevated to the next higher Roman numeral. Each ear will be
evaluated separately. 38 C.F.R. § 4.86(b). However, given
the results of the audiological evaluations of record, these
provisions of the current version of 38 C.F.R. § 4.86 are
clearly and unmistakably not applicable.
In light of the foregoing the Board finds that the veteran's
disability picture does not approximate the criteria
necessary for a higher disability evaluation. 38 C.F.R. §
4.7. Here, the preponderance of the evidence is against the
veteran's claim, and therefore the application of the benefit
of the doubt doctrine contemplated by 38 C.F.R.§ 3.102 (2000)
is inappropriate in this case.
Left Ankle Disability
The service medical records reflect related to a first degree
sprain of the anterior talofibular ligament of the left ankle
which was incurred in February 1989. Further complaints
related to the left ankle are noted in records dated in July
1992. At that time, the examiner reported an assessment of
recurrent inversion injury of the left ankle with soft tissue
trauma.
At a July 1998 VA examination the veteran reported that he
did not have any significant problems with range of motion.
He did, however, report intermittent complaints of pain,
especially when walking on irregular surfaces or jogging. He
reported using over the counter medications with fairly good
success. On examination, there was a full range of motion
and some mild tenderness with inversion, especially against
an immovable object. Effusions or laxity were not
appreciated. X-rays were normal, except for a calcaneal spur
on the plantar surface which the veteran did not complain of.
The examiner reported that the left ankle was unremarkable,
and that arthritic changes in the joints had not been noted
on examination or x-ray. The examiner further commented that
the condition did not appear to have any significant
impairment on the veteran's ability to carry out daily
activities or work in a full capacity.
Service connection is currently in effect for residuals of
inversion injury of the left ankle, rated by analogy as
noncompensable under the provisions of 38 C.F.R. § 4.71a,
Diagnostic Code 5271. When an unlisted condition is
encountered it will be rated under a closely related disease
or injury in which not only the functions affected, but the
anatomical localization and symptomatology are closely
analogous. 38 C.F.R. § 4.20.
Separate diagnostic codes identify the various disabilities.
Pertinent regulations do not require that all cases show all
the findings specified by the Rating Schedule, but that
findings sufficiently characteristic to identify the disease
and the resulting disability and above all, coordination of
rating with impairment of function will be expected in all
cases. 38 C.F.R. § 4.21.
Diagnostic Code 5271 contemplates limitation of ankle motion.
A minimum rating of 10 percent is assigned when the
limitation is moderate and a maximum rating of 20 percent is
assigned when the limitation is marked. In this case, a
noncompensable rating is assigned. Under 38 C.F.R. § 4.31,
in every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held
that in evaluating a service-connected disability, the Board
erred in not adequately considering functional loss due to
pain under 38 C.F.R. § 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45. The Court held that a
diagnostic code based on limitation of motion does not
subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against
pyramiding set forth in 38 C.F.R. § 4.14 (2000) does not
forbid consideration of a higher rating based on a greater
limitation of motion due to pain on use, including flare-ups.
As noted, on examination there was full range of left ankle
motion. The examiner did, however, observe some tenderness
on inversion, and the veteran reported that he experiences
pain on an intermittent basis, especially when walking on
irregular surfaces or jogging. Hence, it can be argued that
there is some limitation of motion due to pain on use and
that there is some degree of functional loss. Objectively,
however, the examiner's overall assessment was that the
condition did not have any significant impairment on the
veteran's ability to carry out daily activities or work in a
full capacity. There was no objective evidence of
incoordination, weakness, or objective evidence of pain on
motion. Therefore, even after considering the provisions of
38 C.F.R. §§ 4.40 and 4.45 the disability picture presented
does not approximate the criteria for a compensable rating of
10 percent when applying Diagnostic Code 5271.
In reaching this decision the Board considered all other
potentially regulations whether or not they have been raised
by the veteran, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). The Board finds, however, that they do not
provide a basis to assign a compensable rating. For
instance, a 10 percent rating is assigned under Diagnostic
Code 5272 for subastralgar or tarsal joint ankylosis in good
weight-bearing position. The veteran's left ankle, however,
is not ankylosed. Therefore, Diagnostic Code 5272 would not
apply here. Diagnostic Code 5273 provides for a 10 percent
rating for malunion of os calcis or astralgus when there is
moderate deformity. However, the clinical findings do not
indicate that the veteran's left ankle disability can be
described as malunion of the os calcis or astralgus.
Therefore, Diagnostic Code 5273 would not apply here as well.
In short, the preponderance of the evidence is against the
veteran's claim, therefore the application of the benefit of
the doubt doctrine contemplated by 38 C.F.R. § 3.102 is
inappropriate in this case.
Bilateral Mandibular Fracture Residuals
The service medical records reflect a fracture of the
mandible in 1968. The fracture was to the right subcondylar
area and to the left body with mental nerve involvement. A
closed reduction was performed. The fracture was noted in
the veteran's medical history report at the time of his
retirement examination in November 1994, but no disability
was found on examination.
At an August 1998 VA examination the examiner observed
vertical mandibular motion was 50 millimeters, and bilateral
lateral excursion to 11 millimeters. The veteran
demonstrated a functional occlusion, and no anesthesia or
paresthesia was noted along the mandibular division of the
trigeminal nerve. Fanorex study showed an intact mandible,
and probable remodeling along the left condylar neck
anteriorly. The right condyle was within normal limits.
Temporomandibular joint tomograms in open and closed
positions, demonstrated a full range of mandibular motion
with intact translation bilaterally. The examiner reported a
diagnosis of status post bilateral mandibular fractures
(right subcondyle, left body). There were no subjective
factors. The examiner mentioned that the objective factors
include functional occlusion and full range of mandibular
motion, and that there was no functional impairment.
Service connection is currently in effect for bilateral
fracture of the mandible, rated as noncompensable by analogy
under 38 C.F.R. § 4.150, Diagnostic Code 9904. 38 C.F.R.
§ 4.20. Diagnostic Code 9904 contemplates malunion of the
mandible. A noncompensable rating is assigned when there is
slight displacement. A 10 percent rating is assigned for
moderate displacement. In a notation, it is provided that
the ratings are dependent upon the degree of motion and
relative loss of masticatory function.
In this case, the clinical findings do not indicate or
suggest that there is more than slight displacement of the
mandible. In fact, the examination revealed an intact
mandible, a full range of motion, and the examiner did not
find any functional impairment. Therefore, there is no
question as to which evaluation should apply. 38 C.F.R.
§ 4.7.
The Board has considered all other potentially applicable
diagnostic codes but finds that other codes do not provide a
basis to assign a compensable evaluation. In this respect,
the evidence does not show evidence of osteomyelitis of the
mandible which could be rated under Diagnostic Code 5000.
Moreover, although rated as malunion of the mandible, the
evidence does not demonstrate that the disability picture
includes or is comparable to moderate nonunion of the
mandible as required for a 10 percent rating under Diagnostic
Code 9903. Rather examination revealed a full range of
mandibular motion, and it has not been shown that there is
either limitation of temporomandibular articulation in the 31
to 40 mm inter-incisal range or a lateral excursion range of
0 to 4 mm as required for a 10 percent rating under
Diagnostic Code 9905. As such, the preponderance of the
evidence is against the veteran's claim. Therefore, the
application of the benefit of the doubt doctrine is
inappropriate, and the claim must be denied.
ORDER
Service connection for residuals of a left acromioclavicular
separation is granted. Service connection for a back
disorder is denied.
Compensable evaluations from October 31, 1997, for hearing
loss, residuals of a left ankle inversion, and bilateral
mandibular fracture residuals are not warranted.
REMAND
The veteran is service connected for hemorrhoids, and he is
seeking a higher original rating from October 31, 1997.
Significantly, however, while the veteran was afforded a VA
examination in July 1998, that examination did not include a
rectal examination. As such, there is no current evidence
upon which to ascertain whether the veteran has large or
thrombotic, irreducible, with excessive redundant tissue,
evidencing frequent recurrences, or whether the hemorrhoidal
disorder is even more severely disabling. Hence, the July
1998 study was inadequate and further development is in
order.
As the issue of entitlement to a compensable evaluation based
on multiple noncompensable disorders is inextricably
intertwined with any rating assigned the appellant's
hemorrhoidal disorder this issue is deferred.
Therefore, this case is REMANDED for the following action:
1. The RO should contact the veteran and
afford him the opportunity to identify or
submit any additional pertinent evidence
in support of his claim of entitlement to
an increased original evaluation for
hemorrhoids. Based on his response, the
RO should attempt to procure copies of
all records which have not previously
been obtained from identified treatment
sources. All attempts to secure this
evidence must be documented in the claims
file by the RO. If, after making
reasonable efforts to obtain named
records the RO is unable to secure same,
the RO must notify the veteran and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; and (c) describe any further
action to be taken by the RO with respect
to the claim. The veteran must then be
given an opportunity to respond.
2. Following the completion of this
development, the RO must schedule the
veteran for a VA examination. This study
is to determine the current nature and
severity of any hemorrhoidal disorder.
All indicated studies, tests, and
evaluations should be performed, and all
pertinent symptomatology and findings
should be reported in detail. The claims
files must be made available to and
reviewed by the examiner prior to the
requested study and the examination
report should reflect that such a review
was made. For any opinion offered a
complete rationale should be provided.
The examination report should be typed.
3. The veteran is hereby notified that
it is his responsibility to report for
all examinations, to cooperate in the
development of the claim, and that the
consequences for failure to report for a
VA examination without good cause may
include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (2000). In the
event that the veteran does not report
for the aforementioned examinations,
documentation should be obtained which
shows that notice scheduling the
examination was sent to the last known
address. It should also be indicated
whether any notice that was sent was
returned as undeliverable.
4. After the development requested has
been completed, the RO should review the
examination reports to ensure that they
are in complete compliance with the
directives of this REMAND. If the
reports are deficient in any manner, the
RO must implement corrective procedures
at once.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
DEREK R. BROWN
Member, Board of Veterans' Appeals